Civil Grand Jury Report: Ethics Commission is a “Sleeping Watchdog”

The San Francisco Civil Grand Jury today reported that the San Francisco Ethics Commission is a Sleeping Watchdog that abdicates its responsibilities, has failed to act on all 18 Sunshine violations referred to it for action, and is vulnerable to manipulation in assessing fines against politicians and political groups.

It recommends several corrective actions, including televising Ethics Commission meetings to ensure greater transparency in its deliberations.

The Civil Grand Jury’s findings echo in some respects the concerns about the Ethics Commission voiced during the Board of Supervisor’s Rules Committee consideration of an appointee to the Ethics Commission.

Supervisors privately expressed reservations that one candidate, Allen Grossman, had sued the Ethics Commission over its failure to enforce the Sunshine Ordinance. His application was rejected by the Rules Committee in favor of Dorothy Liu, who was described by Supervisor Elsbernd as “the perfect candidate” because she had no experience with city politics or the Ethics Commission.

The Civil Grand Jury report found that the Ethics Commission has never enforced the Sunshine Ordinance and allowed rulings to be ignored.

“Since October 2004 through December 2010 there have been 18 cases where the Sunshine Ordinance Task Force has requested that the Ethics Department enforce a violation of the ordinance. In all 18 cases the commission has not taken ANY action for violation of the Sunshine Ordinance,” the report states.

“Because of the Ethics Commission’s lack of enforcement, no city employee has been disciplined for failing to adhere to the Sunshine Ordinance. The Commission has allowed some city officials to ignore the rulings of the Sunshine Ordinance Task Force” according to the report.

The Civil Grand Jury also recommended that the Ethics Commission meetings be televised as a step toward greater transparency of its deliberations. The Rules Committee settled on the nomination of Dorothy Liu, who expressed strong reservations about televising the hearings because they might embarrass some people. Grossman was a strong advocate of televising the commission hearings.

The Civil Grand Jury also found that there is a “negative and jaded perception” of the Ethics Commission members because of the way they are appointed, which can give rise to political interference in their decisions.

At Rules, Dorothy Liu promised that she would consult with the Board of Supervisors that appointed her before making any important decisions.

Ethics “Vulnerable to Manipulation”

The impression of political favoritism and irregularity in assessing penalties for violating city ethics laws was a key consideration of the Civil Grand Jury.

“When a violation has been established, the Commission staff engages in negotiations with the alleged violator or their counsel to determine the fine. This puts the Ethics Commission staff in a recurring negotiating role with the city employees, campaign consultants, campaign staff or lobbyists to establish the fine. This is most irregular and vulnerable to manipulation against the public interest,” state the report.

The report also found that Ethics Commission members had abdicated their responsibilities to its Executive Director, who controls what issues receive a public hearing or even whether commissioners know if their colleagues seek to consider complaints of violations.

“Additionally the commissioners are not notified about which specific items are scheduled for the closed session making it difficult to prepare for the meeting. One of the commissioners stated there was an expectation that “…the commission should support the Executive Director in his decision to dismiss a case”.

The Civil Grand Jury noted that only two Ethics Commissioners volunteered to appear to explain their work and responsibilities.

The Civil Grand Jury states that it did not seek to perform a comprehensive review of the Ethics Commission, but focused on several key aspects of its responsibilities.

“The focus of this report, however, is limited to an examination of the arbitrary method by which fines are determined, enforcement irregularities, the failure to provide adequate transparency, the excessive influence of the Executive Director over commission members leading to the commission members abdicating their responsibilities to serve as our independent watchdog, and investigations performed by Ethics Commission staff.”

Supervisors to Vote On Report

The next step is for city departments to provide a written response to the Civil Grand Jury findings and recommendations, followed by a hearing and vote at the Rules Committee and the full Board on the report and action on the recommendations.

The Grand Jury’s Findings and Recommendations are:

Finding 1 Having the Ethics Commission staff establish the fine and then enter into negotiations could be viewed as lacking a strong and effective operating system that could lead to questions of fairness and transparency.

Recommendation 1.1 The Ethics Commissioners should establish a fixed fine structure for violations or apply the maximum allowed fine.

Recommendation 1.2 If the respondent disagrees with the fine a request may be made for a public hearing. This will allow the commissioners to exercise discretion over the fines process.

Finding 2 The failure of the Ethics Commission to enforce Sunshine Ordinance Task Force actions weakens the goal of open government and reduces the effectiveness of the Sunshine Ordinance.

Finding 4 Currently commissioners are appointed by elected officials. In turn, the staff and commissioners scrutinize campaign expenditures and activities of those same elected officials. The Civil Grand Jury feels this leads to the appearance of impropriety.

Recommendation 4 The City Charter should be changed to add four additional commission members appointed by nonpartisan community organizations and individuals such as: The League of Women Voters, Society of Professional Journalists, The San Francisco Labor Council, The Bar Association of San Francisco, and the Dean of UC Hastings Law School.

Finding 5 The Ethics Commissioners have relinquished their authority to the Executive Director concerning items recommended for dismissal.

Recommendation 5 The commissioners should amend section VI. A in the Ethics Commission Regulations For Investigations and Enforcement Proceedings to require review and a vote on investigations recommended for dismissal.

Finding 6 The Ethics Commission staff does not appear to have a proper database to track issues efficiently.

Recommendation 6 The Ethics Commission staff should create or modify their database to increase search and tracking capabilities.

Finding 7 In the context of open government, providing audio recordings of the Commission meetings does not provide enough transparency.

Recommendation 7 To maximize transparency, the San Francisco Ethics Commission should broadcast their meetings on the SFGOVTV television network.